Zhang (Migration)

[2017] AATA 2185

Zhang (Migration) [2017] AATA 2185 (10 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Guihan Zhang

CASE NUMBER:  1617181

DIBP REFERENCE(S):  BCC2016/2372297

MEMBER:Adrienne Millbank

DATE:10 November 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 10 November 2017 at 4:29pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 500 visa – Genuine student – Academic progress – Credible Witness

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2 cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 September 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 July 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The Delegate was not satisfied that she intended genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. The Tribunal also took evidence from the applicant’s fiancé who attended as a sworn witness. The hearing was conducted with the assistance of an interpreter in Mandarin.

5. The Tribunal advised the applicant, pursuant to s.359AA of the Act, that it had information that was contained in the record of the Departmental interview with the applicant and in her Provider Registration and International Student Management System (PRISMS) record that would be the reason or part of the reason for the decision under review being affirmed. The applicant was advised that the Tribunal would be raising concerns and asking questions based on the information in these documents, and that when it did she could seek an adjournment and consult with her agent before providing her response. The applicant did not seek an adjournment.

6. The applicant was assisted in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

8. The applicant was born in 1995 in China. She arrived in Australia on 5 October 2013 on a Student (subclass 573) visa valid to 30 August 2016.

9. A summary of the applicant’s course enrolment history indicates that the applicant has enrolled in a course in English for Academic Purposes and six Diploma courses: two University Diplomas in Business; two Diplomas in Management; one Diploma in Hotel Management; and one Diploma in Leadership and Management. She has enrolled in two Advanced Diploma courses: one in Management; and one in Leadership and Management. She has also enrolled in three Bachelor of Business courses, including her current course at Holmes Institute in Brisbane.

10. The applicant is recorded by PRISMS as having completed her English for Academic Purposes course, on 2 February 2014; and a Diploma of Leadership and Management, on 12 October 2015. Apart from the Bachelor of Business course in which she is currently enrolled, the outcome registered for the other enrolments is ‘cancelled’.

11. The applicant travelled to China from 5 February–7 March, when her grandmother died; from 25 December 2015–16 March 2016; from 18 November 2016–5 February 2017; and from 7–22 August 2017.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

13. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

14. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

15. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

16. The Tribunal at hearing asked the applicant whether and where she had worked since arriving in Australia, and questioned her at length about her course enrolments and completions. The applicant stated that she lives in rental accommodation with her boyfriend and other students; that she has never worked in Australia; and that at all times she has been fully supported by her parents. The applicant explained her course enrolment history in detail, indicating subjects that have been credited towards her current Bachelor of Business studies at Holmes Institute. She acknowledged that she has been enrolled in a number of Diploma courses, and explained how she had been advised by a previous migration agent that she had limited options and to enrol in the Diploma-level courses because they would lead into a Bachelor Degree, in either Business or International Tourism and Hotel Management. She argued consistently throughout the hearing that her goal has always to obtain one of these degrees because she believed either would help her to obtain employment in China.

17. The applicant acknowledged that she experienced difficulty in some of the course-work in her first years of study, but argued that she has improved and is confident that she will complete all the coursework required for her degree by 31 July 2018. She stated that she has obtained counselling and support and advice from teaching staff as well as friends who have graduated or are nearing graduation from similar courses. She provided evidence of subjects credited through her diploma studies and of subjects she has completed in 2016 and 2017 in 2016 and 2017 towards her Bachelor Business Degree at Holmes. She described how she is nearing completion in four subjects she studied in the final semester in 2017. She advised that she has earned over 40 per cent in assignments in all these subjects, and is confident, having worked hard and obtained assistance and advice from her teachers, that she will be given a pass in all of them. She acknowledged that she had not passed all the subjects she took in the first semester of the degree course at Holmes, but advised that she is enrolling in a summer course and that she is confident, on the advice she has received, that she can complete all the coursework necessary by the end of July 2018.

18. The applicant spoke with conviction and the Tribunal accepted her claims to be focussed on completing her Bachelor degree at Holmes Institute.  She stated that she no longer intended to transfer to Griffith University, where her boyfriend (and current fiancé) and other friends studied. She stated that she desperately did not want to disappoint her parents, who have invested a significant amount of money in her Australian education, by returning to China without a Bachelor Degree. She described how she has a three-year old brother whom she wants to spend time with and provide support to; how as well as her parents she has aunts and uncles and many cousins in China; how she has been homesick for proper Chinese food as well as her family; how she and her boyfriend intend to marry in China and build careers together there; and how her parents have purchased a house for her in China, for which she signed paperwork on a recent visit.

19. The applicant’s boyfriend in witness testimony at hearing stated: that he has graduated with a degree in Hotel Management and Hospitality from Griffith University which he completed in 2016; that he is on a  six-month Visitor visa; that he is living with and assisting the applicant with her studies; that the applicant is strongly motivated and focussed on completing her degree so that they can return to China together; that they intend to marry when they return to China; that the applicant’s motivation has always been to obtain a degree, either in Hospitality or Business; and that he believes she was poorly advised regarding course enrolments by her former agent.

20. The Tribunal raised the issue of the Departmental interview. The applicant explained that she had just returned from China when she received the phone call, and was nervous and unused to speaking and thinking in English. She acknowledged that she was uncertain about her studies path at this stage, and had trouble remembering details from previous enrolments. She claimed that when she advised the interviewer that she intended to stay in Australia, she meant to convey that she intended to stay as long as she needed to obtain a Bachelor Degree.

21. The Tribunal found the applicant to be sincere in her belief that a Bachelor degree from Australia will help her to obtain the sort of employment she is aiming for in China, and to be genuinely distressed and concerned by her belief that should she return to China without it, her parents’ money and her time will have been wasted.

22. The Tribunal found the applicant to be open and forthcoming in her responses to questions at hearing, and also found the witness to be open and sincere in his testimony.

23. On the basis of the evidence and argument provided, the Tribunal accepts that the applicant intends to return to China on completion of her Bachelor of Business degree from Holmes Institute.

24. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212(a).

25. Having considered the applicant’s circumstances, immigration history and stated intentions the Tribunal is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.

26. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

27. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Adrienne Millbank
    Member